JUDGMENT B. Kemal Pasha, J. 1. Challenging the concurrent findings entered by the Additional Munsiff's Court, Ernakulam in O.S.No.735 of 2009, followed by those of the Subordinate Judge's Court, Ernakulam in A.S.No.87 of 2011, the defendant in O.S.No.735 of 2009 has come up with this second appeal. 2. The suit is one for a decree of perpetual injunction, restraining the defendant, his men and agents from trespassing into plaint A schedule property, and from interfering with the plaintiffs' peaceable possession and enjoyment of plaint A schedule property, apart from enjoying the right of way of the defendant also, over plaint A schedule property. 3. The 1st plaintiff and defendant are direct brothers. The plaint A schedule property is having an extent of 0.750 cents in Sy.No.31/11A of the Manakkunnam Village, which is having a length of 16 metres and a width of 2 metres from the northern most portion of the 6 cents of property, which remained with the legal heirs of late Ayyappan. 4. The aforesaid 6 cents of property originally belonged to late Ayyappan. The 1st plaintiff, the defendant, and 6 others were the children of late Ayyappan. Ayyappan died intestate in respect of the said 6 cents of property, whereby, the same devolved on his 8 children including the 1st plaintiff and the defendant. All the children of late Ayyappan except one Babu, jointly executed an agreement for sale, in favour of the defendant, in respect of the said 6 cents of property on 18.01.1999, whereby, they had agreed to execute a sale deed in respect of the said property in favour of the defendant. Admittedly, there was a clause in the agreement for sale, whereby, the defendant herein as well as all the parties to the agreement had agreed to put up a pathway having a total extent of 0.750 cents through the northern most portion of the said 6 cents of property for the use of the 1st plaintiff herein. 5. The sale as agreed to, could not take place. When the sale could not take place, the defendant approached the Munsiff's Court, Ernakulam through O.S.No.1871 of 1999 against the other children of late Ayyappan, including the said Babu, who was impleaded as the 7th defendant in the said suit, seeking specific performance. The 1st plaintiff herein was the 4th defendant in O.S.No.1871 of 1999. When the sale could not take place, the defendant approached the Munsiff's Court, Ernakulam through O.S.No.1871 of 1999 against the other children of late Ayyappan, including the said Babu, who was impleaded as the 7th defendant in the said suit, seeking specific performance. The 1st plaintiff herein was the 4th defendant in O.S.No.1871 of 1999. Some of the defendants including the 1st plaintiff in the present suit had filed a written statement in the said suit, challenging the validity of the agreement on the ground that it was hit by coercion. 6. Ultimately, the suit went in favour of the present appellant herein, who was the plaintiff in the said suit. Specific performance was allowed in favour of the plaintiff in that suit, and defendants 1 to 6 in the suit were directed to execute the sale deed. No decree was granted against the 7th defendant, who did not affix his signature in the agreement for sale, and the plaintiff in the said suit was permitted not to deposit an amount of ^10,000/- out of the total sale consideration. Ultimately, the sale deed was executed through court, in favour of the plaintiff in the said suit. 7. Plaint B schedule property originally belonged to the 1st plaintiff, to which plaint A schedule pathway was provided through the aforesaid agreement. The 1st plaintiff herein subsequently settled plaint B schedule property in favour of the 2nd plaintiff through Exhibit-A1. The plaintiffs could not produce the agreement for sale because of the fact that the said agreement was in the possession of the defendant and the defendant had produced it in the earlier suit. When the plaintiffs attempted to get the same produced from the other suit, it was revealed that the records including the said document in the earlier suit were destroyed. 8. According to the plaintiffs, when they attempted to make use of the pathway for taking building materials to plaint B schedule property, through the pathway granted by all the parties as aforesaid, the same was obstructed by the defendant, and hence the suit. The defendant contended that the plaintiffs are not entitled to forward any claim in respect of the said pathway in the present suit and the said claim is hit by the principles of constructive res-judicata. The defendant contended that the plaintiffs are not entitled to forward any claim in respect of the said pathway in the present suit and the said claim is hit by the principles of constructive res-judicata. It is contended that the plaintiffs or the 1st plaintiff ought to have raised the said question in the earlier suit and therefore, the 'might and ought theory' will come into play, as far as the present suit is concerned. It is also contended that the 1st plaintiff, who had denied the execution of such an agreement in the earlier suit, cannot presently forward any claim on the basis of such an agreement through this suit. It has been further contended that the suit is one for injunction simplicitor and when the defendant is objecting the right claimed by the plaintiffs, the plaintiffs ought to have sought for better reliefs. It has been further contended that the suit is bad for non-joinder of necessary parties, since the said Babu, who was not a party to the agreement for sale, is not impleaded as a defendant in the suit. 9. This second appeal has been admitted by this Court on the substantial question of law raised as follows: "Can a party to a previous suit who denied the execution of an agreement to assign land take up any contention based on that agreement in a subsequent suit for injunction?" 10. Heard the learned counsel for the appellant and the learned counsel for the respondents. 11. The learned counsel for the appellant has vehemently argued that when the 1st plaintiff had denied the execution of the agreement for sale in the other suit, he cannot presently forward any claim in this suit based on that agreement, especially when, such an issue was not raised by him in the earlier suit. On going through the written statement and the contentions resorted to by some of the defendants including the 1st plaintiff herein, who was the 4th defendant in the said suit, it has clearly come out that it was, in fact, not a denial of execution of the agreement for sale. The contention was that their free consent was lacking in the execution of the agreement, since it was hit by coercion. The contention was that their free consent was lacking in the execution of the agreement, since it was hit by coercion. It seems that there was a contention from their part that the value of the property shown in the agreement was very meager, and that it could have fetched a higher value. They wanted to avoid the execution of the sale deed, mainly on the said ground. 12. When the 4th defendant in the said suit, who is the present 1st plaintiff, and others wanted to avoid the execution of the sale deed in favour of the defendant in respect of the said 6 cents of property, the 1st plaintiff cannot be found fault with in not claiming a relief of the present kind in the said suit. More over, in fact, such an issue was not there in the earlier suit and there could not have been such an issue also. 13. Exhibit-A2 is the attested copy of the judgment rendered by the Munsiff's Court in O.S.No.1871 of 1999, which was a suit for specific performance of the agreement for sale. In page No.2 of Exhibit-A2, it has been stated so: "The plaintiff has to give 0.75 cents to the 4th defendant as per the terms of the agreement." Apart from that in page Nos.6 and 7 of Exhibit-A2, it has been so stated: "he further deposed that he has agreed to give 3% cents of land to the 4th defendant for the purpose of a way." The said court was dealing with the deposition of the plaintiff in the suit, who is the present defendant. Therefore, it is crystal clear that even at the time of evidence in O.S.No.1871 of 1999, the defendant herein, who was the plaintiff as PW1, had willingly agreed to give 3% cent of land to the 4th defendant for the purpose of a way. In such case, when there was no dispute at all between the parties, it cannot be said that at that time, an issue with regard to such a right ought to have been raised. Matters being so, there is no question of any constructive res-judicata as far as the present plaint claim is concerned. In such case, when there was no dispute at all between the parties, it cannot be said that at that time, an issue with regard to such a right ought to have been raised. Matters being so, there is no question of any constructive res-judicata as far as the present plaint claim is concerned. The 1st plaintiff herein, who was the 4th defendant in the said suit, ought to have raised such an issue or a counter claim in case there was any denial of the right with regard to % cent of property in the said suit from the part of the defendant herein. So long as there was no dispute among any of the parties to the said suit with regard to the said right, it cannot be said that an issue with regard to the same ought to have been raised in the said suit. 14. The learned counsel for the appellant has pointed out that the said Babu had not executed any such agreement, thereby he had not agreed to the said right to be enjoyed by the present 1st plaintiff and therefore, the said Babu should have been impleaded in the present suit as one of the defendants. This is a mere suit for injunction. The plaintiffs have not sought for any declaration. In case any declaration was sought for with regard to such a right, it could have been said that the said Babu, who was not a party to the agreement, has to be impleaded as a defendant. When the defendant alone has chosen to obstruct the right which was agreed by him to be given to the 1st plaintiff, the present suit has been filed. In such a case, when the said suit is one for injunction simplicitor, it cannot be said that a person, who did not obstruct the right of the plaintiffs, should have been made a party. The plaintiffs have no cause of action against the said Babu in the present suit and therefore, the present suit is not bad for non-joinder of necessary parties. 15. Lastly, the learned counsel for the appellant has argued that a decree of perpetual inunction can be granted only in respect of a property which is identifiable. It has been contended that the plaint schedule property is not identified through a survey and measurement and therefore, any such decree cannot be granted. 15. Lastly, the learned counsel for the appellant has argued that a decree of perpetual inunction can be granted only in respect of a property which is identifiable. It has been contended that the plaint schedule property is not identified through a survey and measurement and therefore, any such decree cannot be granted. It is the admitted case of the defendant, who was the plaintiff in the earlier suit that he had agreed to give % cent of land from the northern portion of the said 6 cents as a pathway to the present 1st plaintiff. All the parties, except the 7th defendant in Exhibit-A2, had agreed to set apart such a portion having an extent of 0.750 cent from the northern most portion of the 6 cents for the use of the 4th defendant in the said suit, who is the 1st plaintiff herein, as a pathway. In such a case, it cannot be said that the said portion of the property is not identifiable. Even the length and width of the said portion has been given in the plaint schedule. Matters being so, it cannot be contended that the plaint schedule property is not identifiable. 16. From the discussions made above, I conclude that this second appeal is devoid of merits and is only to be dismissed with costs, and I do so. In the result, this second appeal is dismissed with costs.